Cobb v. O'Hagan

• Citation: 81 N.C. 293
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1879
• Parties: WILLIAM E. COBB v. JOHN O'HAGAN.

81 N.C. 293

WILLIAM E. COBB

v.JOHN O'HAGAN.

Supreme Court of North Carolina.

June Term, 1879.

MOTION to vacate a Judgment under C. C. P., § 133, heard at Greenville on the 27th of March, 1879, before Seymour, J.

The judgment which the defendant moved to set aside was recovered against him at spring term, 1879, of WILSON superior court. The facts are stated in the opinion. The motion was refused and the defendant appealed.

Messrs. Connor & Woodard, for plaintiff .

Mr. W. B. Rodman, for defendant .

DILLARD, J.

This was a motion of defendant to vacate a judgment taken against him under section 133 of the code of civil procedure, and the facts on which it was based, so far as it is material to state them, were as follows: The cause having been previously put to issue, stood for trial by a jury at spring term, 1879, of Wilson superior court, which court was limited to one week, and was liable to be reached in the regular call of the docket. Defendant had retained two members of the bar to defend the action, and remained at home, thirty-seven miles away from the court, expecting, if the state docket should be disposed of within the first three days of the term, an unusual thing in the county, that his counsel would communicate the fact to him, by mail, and intending, if so notified, to be present at the trial. There is no statement of any arrangement with the counsel to give defendant notice by mail or otherwise. The case was called and tried; defendant was absent, and so were both of his counsel, one from sickness, and no reason is assigned for the absence of the other.

It is the duty of a party, and so settled by the adjudications of this court, to be present in court at the trial of his cause, for the performance of matters outside of the proper duties of an attorney at law, such as to provide for the attendance of his witnesses, make affidavit for continuance, and the like. Sluder v. Rollins, 76 N. C., 271; Waddell v. Wood, 64 N. C., 624.

The excuse of defendant is, that he expected his counsel to write him through the mail, of any probability there might be of his case being called, if the state docket should be disposed of in a shorter time than at previous terms of the court. Defendant was wilfully absent, and took on himself the risk of his case not being called, or if likely to be reached, the risk of notice being given him through the mail by counsel when no such arrangement had been made, or if attempted through the mail, the...